How long it takes
It depends on the issues, how much you disagree, and how reasonable both sides and both lawyers are. A case with a custody fight in it will usually take longer than one without. A case with a business in it can take longer still, because a forensic expert or an accountant may have to value the business before anything can be divided.
New Jersey's Best Practices say a divorce should not run more than one year from the filing of the Complaint to the Final Judgment. Lawyers and judges both know that is not always what happens.
If the issues are definable and you can both come to the table and make compromises, it can be over in a few months. Complicated matters can run past the year.
What it costs
Nobody can quote you a final price for a divorce, and you should be careful of anyone who does. Divorce lawyers bill by the hour, so the cost comes down to how many hours the case takes.
What drives that is mostly you and your spouse. If you can talk to each other civilly, hand over the documents without being chased, and negotiate in good faith, an agreement comes faster and both of you pay less. The number of issues and how complicated they are does the rest.
Our aim is to get you to a resolution you can live with, because in the long run that is what is best for you and your family.
Uncontested or contested
A divorce is uncontested when the two of you agree on all the key terms. That means all of these:
- Child custody and visitation
- Child support
- Tax deductions and exemptions
- Division of the marital assets and debts
- Alimony
- Anything else in dispute between you
Agree on all of it and the process is shorter. Disagree on any of it and the divorce is contested, which may mean litigation. Even then it is still possible to settle everything without a trial.
The grounds, and whether fault matters
Under N.J.S.A. 2A:34-2 a New Jersey divorce can be filed on any of these grounds:
- Adultery
- Willful and continued desertion
- Extreme cruelty
- Separation
- Voluntarily induced addiction
- Institutionalization for mental illness
- Imprisonment
- Habitual drunkenness
- Deviant sexual conduct
- Irreconcilable differences
Most New Jersey divorces are filed on irreconcilable differences. That only requires six months of not wanting to be married any more.
New Jersey does allow a fault based divorce, but it does not assign blame when deciding the outcome. Nobody is punished for ending the marriage.
Money behavior is the exception. If a spouse spent marital assets on an affair, or deliberately wasted them once the divorce was coming, a court can take that into account when dividing what is left.
How the case moves through the court
The case starts when one of you files a Complaint for Divorce and has it served.
Then comes an Initial Case Management Conference, where the judge goes through what is actually in dispute, sets out the discovery process, fixes an Early Settlement Panel date, deals with expert witnesses, and establishes whether custody and parenting time are contested.
If it has not resolved by then, the case goes to an Early Settlement Panel, usually a team of attorneys who recommend how to resolve the contested issues. If you do not take their recommendations you can still go to mediation. If that fails too, the outstanding issues get litigated.
Either way it ends with a Final Judgment of Divorce entered by the court, whether you settled or fought it out. If it was litigated, both sides have a right to appeal.
Can we use the same lawyer
No. New Jersey's rules of professional ethics forbid one lawyer from representing two parties who are adversaries, and a divorce is an adversary proceeding. A lawyer owes loyalty to the person they represent, and they cannot owe it to both of you at once.
Settling without a trial
There are ways to resolve a divorce outside a courtroom, known generally as Alternative Dispute Resolution. The four you will hear about are:
- Negotiation. You and your spouse stay in control and decide the issues yourselves.
- Mediation. A qualified mediator helps you work through the disagreements. The mediator does not decide anything; the two of you still do.
- Collaborative divorce. A team works toward a settlement: the two of you, lawyers trained in collaborative law, and others such as financial advisors or child custody specialists. Each lawyer still fights for their own client, but from a starting point of cooperation.
- Arbitration. You agree on an arbitrator, and unlike mediation the arbitrator makes the final decision. You give up control, but it can cost less than litigating when you simply cannot reach agreement.
We will use any of these where the other side is dealing in good faith. Where they are not, we try the case.
What counts as a marital asset
Asset distribution is the process of dividing the marital assets and the marital debts. Everything in the pot is called the marital estate.
It is easier to say what is not in it. There are three exclusions:
- Property owned before the marriage, or an asset that can be traced back to something owned before it. Note that a growing number of cases have treated property bought by one party before the wedding, but in contemplation of the marriage, as a marital asset
- Inheritances received by one party during the marriage
- Gifts from third parties
Equitable does not mean equal
New Jersey does not split things down the middle. It is an equitable distribution state, which means marital assets and debts are divided fairly. Fairly is not the same as equally, and often it is not equal at all.
The court works in three steps. First it decides which assets are marital and therefore up for division. Second it puts a value on them, which can be as simple as reading bank statements or as involved as valuing a business. Third, under N.J.S.A. 2A:34-23.1(4), it weighs a list of factors including:
- How long the marriage or civil union lasted
- The age and the physical and emotional health of both of you
- What income or property each of you brought into it
- The standard of living you established
- Any written agreement you made before or during the marriage about how property would be divided
- Where each of you stands financially when the division takes effect
- The income and earning capacity of each of you, taking in education, training, job skills, work history, time out of the job market, responsibility for the children, and the time and expense of becoming self supporting at a comparable standard of living
- What each of you contributed to the other's education, training or earning power
- What each of you contributed to acquiring, keeping, wasting or improving the marital property, including the contribution of a homemaker
- The tax consequences of the proposed division for each of you
- The present value of the property
- Whether the parent with physical custody needs to keep the marital home and the household effects
- The debts and liabilities of both of you
- Whether a trust fund is needed, now or later, for foreseeable medical or educational costs for a spouse or the children
- How far either of you put your own career goals aside
- Anything else the court finds relevant
Student loans and other debt
Debt is divided the same way assets are. Where a student loan was taken out before the marriage, it stays separate property and stays the responsibility of the person who took it out. Where it was taken out during the marriage, it is marital debt.